Editor’s Note: This piece is a part of our series celebrating the thirty-year anniversary of the Americans with Disabilities Act (ADA).
I never met my spring term Disability Law class in person. I told the students appearing on my computer screen, “Watch this moment. As a society, we will devote massive amounts of resources to accommodating the vulnerabilities of our bodies, but we will not call it a disability issue.” We witnessed how schools and other institutions provided remote programming for people stuck in their homes; people discussed the disease’s trauma and stigma; and governments funneled millions of dollars to keep people safe amidst a global threat. Discussions of medical treatment, searching for access to accommodations, and grappling with the upheaval that one’s body may wreak on one’s life is nothing new within the disability community. Over the past 30 years, the Americans with Disabilities Act (ADA) has funneled many of these issues. The ADA has done much to recognize legally the “right of disabled people to live in the world” and change our expectations that disabled Americans are entitled to employers, government programs, and public places that expect and appreciate them.
However, as our experience with COVID-19 has indicated, disabled Americans are still subject to life-threatening prejudice. People with disabilities have disproportionately been infected and dying from COVID-19; disability advocates have challenged triage decisions that have placed some disabled people at the bottom of hierarchies for care; disability advocates lament a discourse that relegates vulnerable people to acceptable losses; and people lodged in institutions such as nursing homes and assisted-living facilities have borne the brunt of infection. Thus, even though COVID-19 has forced us to come to terms with our physical vulnerabilities, it has not forced us to come to terms with our ableism. Prior social inequalities are still making their mark — with a vengeance.
Disability advocates and attorneys have done an admirable job bringing disability issues to our attention. Strikingly, however, disability has a muted role in our consciousness concerning social injustice, and those who could be members of the disability community do not necessarily identify as disabled. Scholars have discussed why disability is so muted — that we have yet to shift disability treatment from the realm of pity and charity to rights and that the relatively quick buy-in of the ADA ultimately failed to force Americans to metabolize the idea of disability rights. In this Blog post, I would like to propose another possibility and suggest another path forward. As an effort to combat the stigmatizing effects of ableism and as a way to knit together people with different physical impairments, disability scholarship and advocacy emphasize disability pride and the shared experience of social prejudice. These efforts are valuable and should continue. Added to them, however, I suggest that we also center how social inequality produces debility and impairment. These social inequities include people poisoned by lead; people hurt by police brutality; people harmed by hate crimes; and people surviving sexual violence. They are a crucial reason why the disability community is disproportionately Black and Brown, female, poor, and LGBTQ. Nevertheless, these accounts of social injustice rarely get spelled out in disability terms.
Highlighting the ex ante social inequities that produce debility is not without its risks. A careless application could reproduce the older medical model of disability that privileged medical professionals and allied workers who diagnosed impairments instead of the disabled people who lived with them. Speaking about the negative aspects of impairments could fall into a preexisting and prominent discourse of pity and contempt about living a life with disabilities. Ameliorating the underlying social conditions that cause some debility would decrease the population of the disability community. Parsing the causes of debility could threaten to fracture the big tent of the disability community.
On the other hand, there is also a big potential upside. Disability has much to offer: a history, a community, and law. Recognizing that some impairments might be tough or painful acknowledges some people’s reality. It notes the conditions, such as chronic pain or some psychiatric conditions, that have only more recently fit within the disability pride message. Disability can join forces with other simultaneous movements that may not necessarily recognize the importance of disability to their goals. Furthermore, a putatively universal coalition that does not adequately capture its most vulnerable members’ priorities just papers over problems rather than addressing them. We can point out that while the legal system has worried about the “floodgates” of people claiming disability accommodations, the more tragic reality is the people who could use disability law but do not recognize that it is for them.
As we cross the threshold of 500,000 COVID-19 deaths within the United States and celebrate the advent of mass vaccination, and when we take stock of the harm caused by the pandemic, we can think anew about how people with preexisting conditions, people lodged in nursing homes and prisons, and people vulnerable due to weak labor protections and prejudice may have more in common than they realize.